Earlier this week, OSHA released a new directive “applicable to all facilities, including petroleum refineries, covered by the PSM standard” intended to “reduce or eliminate workplace hazards associated with the catastrophic release of highly hazardous chemicals.” The new directive renews a National Emphasis Program (NEP) for facilities who manufacture, process or store large amounts of hazardous chemicals, and specifically names refineries and “pyrotechnic manufacturing facilities” as targets for enforcement. The new directive is also notable because, for the first time, OSHA will make use of data and referrals from the Environmental Protection Agency’s (EPA) Risk Management Plan (RMP) Program to inform its targeted enforcement strategies.
OSHA’s Process Safety Management (PSM) standard originally called for certain facilities with threshold quantities of chemicals listed in 1910.119 App A to take steps to minimize the chance of an incident, and to disclose information about onsite chemicals to first responders and local communities. As reported on this blog, many businesses avoided the PSM through what OSHA characterized as a “loophole.” However, when OSHA issued a revised interpretation to close this loophole, industry groups successfully blocked the action in court, arguing that OSHA had not followed required procedure.
Because its PSM-related appeals are now exhausted, this new directive may be OSHA’s way of continuing to pursue enhanced enforcement in this area.
In the text of the new directive, OSHA says it will use four sources when determining who to target for enforcement under this new emphasis program:
- EPA RMP Program 1, Program 2, and Program 3 submittals
- Businesses with NAICS codes indicating they are manufacturers of pyrotechnics and/or explosives
- OSHA’s Integrated Management Information System (IMIS) and OSHA’s Information System (OIS) databases for establishments with prior OSHA PSM citations
- Firsthand knowledge of local facilities held by OSHA inspectors in regional area offices
The addition of EPA RMP information as a criteria for enforcement is notable and new. The EPA requires businesses with an RMP-covered process to submit information to the EPA which is then posted on a database. The new directive explicitly encourages OSHA inspectors to use this EPA database when considering opening an investigation.
OSHA also seems to hint that enforcement under this new directive may be comparable to enforcement under its now-archived CHEM NEP program. In the text of the directive, OSHA states that: “Since 2010, the Agency [OSHA] has issued 69 significant enforcement cases to chemical facility employers inspected under the CHEM NEP. During the same period, OSHA issued 24 significant enforcement cases to petroleum refinery employers. Petroleum refineries also have experienced numerous fatal and/or catastrophic process-related incidents since 2010. . .”
Thus, we may be able to conclude that OSHA is looking to expand its enforcement and renew a focus on oil and pyrotechnics, as well as the businesses it had hoped to target by closing the PSM loophole.
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